Decriminalisation of Adultery in India

Introduction:

Former President of South Africa and Revolutionary Nelson Mandela once said: “Freedom cannot be achieved unless women have been emancipated from all kinds of oppression”. Indian Society has been working on the basis of a patriarchal system. Women have faced a lot of disparity for several decades as men have used women as personal possessions rather than equal members of society. This disparity was present in Section 497 of the Indian Penal Code, 1860. This section deals with the criminalisation of adultery in India. Adultery is when a person has sexual relations with a married person without the consent of the person’s spouse. Adultery, is actually a gender-neutral concept, although Section 497 was biased towards women which is why the Supreme Court of India declared this law as unconstitutional on 27th September 2018.

Adultery Law in India

Section 497 of Indian Penal Code, 1860 defined adultery law in India. It states that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor”

According to this law, the woman committing the offence would not be punishable as an abettor, this was because of the patriarchal thought of the society. This thought was that, after a man is married to a woman, the woman becomes a personal possession for him. Only the man having sexual relations with the married woman without the consent of the husband would be punishable. Also if the husband had sexual relations with a woman without the consent of his wife, the husband and woman both would not be punishable as the wife didn’t have any provision of filing of complaint regarding this under any section of IPC.

Elements of Section 497 of the Indian Penal Code. 1860: –

• The person must have a sexual relationship with the spouse of another man
• The person committing sexual relations must have knowledge or reason to believe that the woman is married.
• The husband must have not agreed for the commission of the sexual relation
• The commission of the relation shouldn’t reach to the conclusion of rape.

Decriminalisation of Adultery- Joseph Shine vs Union of India

A Public Interest Litigation under Article 32 of the Constitution of India was filed by Joseph Shine challenging the constitutionality of Section 497 of the Indian Penal Code, 1860 which criminalises Adultery and Section 198(2) of the Indian Penal Code, 1860 which deals with how a complaint can be filed for offences mentioned in Section 497 and 498.

A five-judge bench sat for the case of Joseph Shine vs Union of India in the Supreme Court of India and made Sections 497 and 198(2) void as they were unconstitutional in nature. The bench comprised of Justice Dipak Mishra, Justice R.F. Nariman, Justice Indu Malhotra, Justice A.M Khanwilkar and Justice D.Y Chandrachud.

Reasons for Decriminalizing Adultery

The supreme court stated that they are striking down this law because of how arbitrary and unconstitutional it is in nature and the reasons for the same are given by the bench are mentioned below-

• Justice R.F Nariman says that Section 497 of Indian Penal Code, 1860 doesn’t punish women, only punishes men, which promotes inequality and is against Article 14 of the Constitution of India which is about right to equality, he says that “Ancient notions of man being perpetrator and woman being the victim no longer hold good”. He also states that this section is against Article 15 as well which states that no one should discriminate on grounds of sex or gender.
• After a husband and wife marry, the wife doesn’t lose the right and freedom to explore her sexuality, she should be open to having sexual relations and should have total sexual freedom, she doesn’t lose that freedom after she marries someone. Chief Justice Deepak Mishra stated “Husband is not the master of the wife”, he doesn’t have the right to possess her.
• Justice D.Y Chandrachud in the regards of sexual freedom says that taking freedom from woman to explore her sexuality is against Article 21 of the Indian Constitution which is the concept of the right to privacy, dignity and personal liberty. He said, “controlling sexuality of woman hits the autonomy and dignity of a woman”.
• Justice Indu Mehta states that adultery is a matter of privacy and must be discussed between the husband and wife only, the government shouldn’t be a part of the discussion. Although this could be used as a ground for divorce, the government being a part of this conversation violates Article 21.

The PIL demanded gender-neutral laws regarding Section 497 of the Indian Penal Code, 1860, although the bench decided the whole section to be unconstitutional as the criminalisation of adultery violates personal liberty and can be only used as a ground for divorce and therefore, adultery was decriminalised on 27th September 2018.

Drawbacks of Decriminalisation of Section 497

While it being a great step advocating and promoting sexual freedom and gender equality, decriminalising adultery can also be drastic for our society. The reasons for this are:-

• Decriminalising adultery would destroy the foundation on which the institution of marriage works. Deterrence theory can be applied in this scenario, i.e. if a married person is not punished for adultery, chances are, that he would be more likely to commit that act.
• If the section stays criminalised, the person punished because of the adulterous relationship may get reformed, although if not punished, there can be an increase in the number of marital rapes,
• Also, marital disputes might be increased because of the lack of trust between the spouses because of adulteration by a spouse which can motivate one spouse to commit suicide. Section 306 of Indian Penal Code, 1860 which is regarding the abetment of suicide can be used for this situation.

Rather than decriminalising Section 497 of Indian Penal Code, 1860, the law should be reformed as gender-neutral. By making it gender-neutral, the man and woman both would be able to complain against the adulterer and gender equality would be promoted.

Adultery as a Civil Case

If a married person commits the act of adultery, the spouse of that person while filing for divorce can use the commission of adultery as sufficient ground for divorce. The person has an option to opt-out of the marriage as it is considered as a moral wrong and can destroy one’s marriage. After the adulterous relationship is committed and the spouse gets to know about the fact of that relation, the trust between the spouses is over. While they have the option to live together without trusting and having the kind of loyal relationship they had before the adulterous relationship, they should have the option to not be a member of that association.

Conclusion

Decriminalisation of Section 497 has promoted the principle of gender equality. Criminalising of marriage was violative of both the privacy of man and woman. Any criminal offence is a crime against the society and that’s why the government has to take an action regarding it, although adultery being a personal matter is not a criminal offence, it doesn’t in any way is an offence against the society.

Children born out of adultery, before adultery was decriminalised were called as illegitimate which is highly insolent. After the decriminalisation was done, a certain recognition was given to the child born out of the adulterous relationship and the stigma relating to it has been aloof. Also because of the recognition, the parent would be responsible to give maintenance to children and have a responsibility towards them.

Adultery, though, is not a criminal offence anymore, however it can be used as a ground for divorce, which may destroy the institution of marriage. Also, divorced women aren’t usually treated equally by society, they are blamed for the failure of their marriage. The government should make provisions and start awareness campaigns for the same.